Don’t Do the Crime, If You Can’t Do the Time?
Robert E. Wright writing at American Institute for Economic Research has a helpful summary of the recent Wisconsin Supreme Court case overturning the safer-at-home order. While as a practical matter the decision is less than perfect, I do think the justices got it right here when they point out that the safer-at-home order imposed criminal penalties without meeting the legal standard of what constitutes a crime:
Crimes created by the Legislature in statutes must have specificity in order to be enforceable. … Because Palm fails to understand the specificity necessary to a valid criminal statute, she also fails to understand that no less specificity is required of a rule to which criminal penalties are assigned.
In US law are three (or maybe four) elements of a crime:
- Mental state (Mens rea)
- Conduct (Actus reus)
That is, you must have the intention to commit a crime (#1), must engage in a criminal act or unlawful failure to act (#2), and these must happen at the same time (#3). The last element, causation, basically means that the act or omission resulted in harm.
In overturning the safer-at-home order, the justices argued (among other things) that the state failed to meet all three (or four) of the elements of an actual crime. This matters precisely because the state was treating (or threatening to treat) violation of the safer-at-home order as a crime.
(As an aside, while they are helpful to me as a pastor the county’s directives also seem to impose rather harsh penalties: “Violation of or failure to comply with this Order is a crime
punishable by fine, imprisonment, or both. (Wis. Stats. §§ 252.03 & 252.25) and a violation of Dane County Ordinance §46.25(1) and Madison General Ordinance §7.05(6) punishable by forfeiture.” Though I’m not a lawyer, I can’t help think these might not stand a legal challenge.)
The rule of law depends upon the confidence of the citizenry that the law is just and fairly applied. When otherwise legal acts are criminalized–but only for some individuals, under certain circumstances, people lose confidence in not only the law but the lawgiver.
Prayer in Time of Coronavirus
Alexandria Ocasio-Cortez & Religious Liberty
In my latest Acton Commentary, I respond to Congresswoman Alexandria Ocasio-Cortez’s commnets on religious liberty. Here’s a bit of what I have to say:
Let me first commend Ocasio-Cortez for her frank appeal to the Gospel in her criticism of what she describes as the Trump administration’s “religious liberty assault on LGBTQ rights.” While I disagree with most of what she says, it is good when politicians who describe themselves as Christians take a public stand for their convictions and what they see as the policy implications of their faith. Even when, as in this case, I disagree with what is said, I’m glad to hear religious and specifically Christian ar
You can read the rest here: Liberty for AOC but not for thee | Acton Institute
Seeing the Unseen
Last week on my Facebook page I posted what I described at the time as a “sincerely offered thought experiment for my friends who support socialism.” The post generated a number of responses. Some good, other less so.
A consistent criticism was that the post was the post assumed what one comment called a “dishonest dichotomy” based as it was on what the author characterized as a series of “leading question(s)” that all assume (as another comment has it) a particular definition of socialism. As the author of the second comment writes:
by inviting “socialists” to explain why they’d be comfortable “giving up freedoms” to do certain things, you are implicitly assigning that definition. And it’s a rather patently obvious strawman: by making this socialist bogeyman you’re drawing up the rules of engagement to begin with.
Here I need to pause and point out that sacrifice is built into the nature of our economic life.
Apologists for socialism, as well as their free market counterparts, tend to frame arguments in terms of gain. The socialist (or the social democrat) will offer new entitlements such as “universal health care” or “free college tuition” while downplaying the actual financial costs of these programs.
On the free market side, one hears about how in a free exchange both parties are better off and that such exchanges create wealth. But here as well, there is a tendency to downplay the costs of a system of free exchange. I’m think here especially of the economic dislocations that happen when, for example, jobs move overseas.
To be sure there are, in the long term, benefits to say cheaper consumer goods. So too with freeing up capital for new investment.
The same with innovations in manufacturing or technology. Increased efficiency means an overall higher standard of living. But, again, what is the cost?
As one insightful comment had it my original post is
akin to a “thought experiment” for those who support capitalism to name those corporations whom they would like to exploit, monetize, and micromanage them, down to timing your bathroom breaks.
To which I answered, yes. It is very much like that and this question is fair and one which free market advocates must answer. What do we do when actors in the market engage in legal but morally dubious or unintentionally socially harmful behavior?
What unites this question and the questions I posed (see below) is that, in both cases, we can with the best of intentions act in a ways that compromises the freedom of others.
One of the questions I came back to several times with my Facebook conversation partners is whether we are discussing socialism or a social democracy with a robust safe net, what happens to those who disagree? With those who, for whatever reason, wish to opt out?
Think for example, of what happened when the Obama administration required employers to provide health insurance that included abortion and contraception coverage. A number of business owners and non-profits objected on moral grounds to do so.
As a result they faced the unenviable choice of (1) paying for services that violated their conscience, (2) face ruinous financial fines for refusing to comply with the law, (3) bearing the financial and social cost of a lawsuit against the government.
These costs are every bit as real, and ever bit as forced by circumstances, as those paid by low skill workers who find their bathroom breaks being timed by their employers.
The free market is not always as free as apologists imagine even as socialism or social democracy are not as pro-social as their apologists would have us believe.
In both cases. there are (as Bastiat reminds us) consequences or costs both seen and unseen to any policy or economic system. And so his caution that when a person is “absorbed in the effect which is seen has not yet learned to discern those which are not seen, he gives way to fatal habits, not only by inclination, but by calculation.”
As he concludes “Let us accustom ourselves, then, to avoid judging of things by what is seen only, but to judge of them by that which is not seen.” Why?
The sophism of the Socialists on this point is showing to the public what it pays to the intermediates in exchange for their services, and concealing from it what is necessary to be paid to the State. Here is the usual conflict between what is before our eyes, and what is perceptible to the mind only, between what is seen, and what is not seen.
To this we could, and should, add for example the externalities of international trade or technological innovations.
But there are also costs for advances in medical care, greater rights for women and minorities. These too are part of the “unseen” of the free market. To say that there are costs with the greater liberalization of society, doesn’t mean we should reject the greater freedom. Rather it means we must be even more intentional and clearer about what it means to be free.
All exchanges have costs. Not only financial but social and personal. These are to our economic life what friction is to the physical world. In both cases, they slow us down. But it is here, in the social friction of our economic life that we can see the potential value of Orthodox Social Thought.
With her long history and especially here sacramental vision and eschatological orientation, the Church can bring to our attention what is often unseen in the market place. This includes not only giving a voice to those who don’t share in the material wealth the market generates but also of the broader, moral and spiritual costs to those who do.
“Between a good and a bad economist this constitutes the whole difference,” Bastiat says, “the one takes account of the visible effect; the other takes account both of the effects which are seen, and also of those which it is necessary to foresee.” The good economist must do so because “this difference is enormous, for it almost always happens that when the immediate consequence is favourable, the ultimate consequences are fatal, and the converse. Hence it follows that the bad economist pursues a small present good, which will be followed by a great evil to come, while the true economist pursues a great good to come, — at the risk of a small present evil.”
My argument is that the Church must bring to light not only the seen but the unseen. The Christian must attend to those costs which accrue to even morally good, prudent, and just actions whether by the State or private persons acting individually or in concert.
The Facebook Question:
A sincerely offered thought experiment for my friends who support socialism.
Would you be willing to move to Madison, work for a living and give me final say in all your economic decisions?
These would “major” decisions like what job you held and fir what wage. In addition to this, I would say where you could live and whether or not you owned a car or used mass transit.
It would also include”minor” decision like what you could purchase at the grocery store. Not only would I determine the quantity of your purchases but quality and schedule of what you bought.
If you would do this, why would you give me this authority?
If you wouldn’t, why wouldn’t you and why would you give similar authority to the State?
Just A Grain of Incense
In the early Church, pagan authorities would ask Christians to offer a grain on incense to the gods. Sometimes,as it Maccabees, believers were to merely pretend to do so. Many made the compromise but many didn’t and were martyred.
Many of my Christian friends worry about a coming persecution of believers. But what if the problem in front of us right now is not the persecution of Christians by the progressive Left but the moral compromise of Christians to conservative Right?
What brings this to mind is David French’s recent comments on conservative Christians who uncritically support President Trump:
Why does the larger public not see the compromise in the same way Republicans do, as a necessary, (often anguished) transactional embrace of the lesser of two evils? Well, because these same socially conservative Republicans spent years—decades, really—telling the American public that transactional politics was wrong, that character mattered. The same Southern Baptist Convention that will overwhelmingly vote for Trump next fall passed a resolution in 1998 on moral character of public officials that contained this statement, “Tolerance of serious wrong by leaders sears the conscience of the culture, spawns unrestrained immorality and lawlessness in the society, and surely results in God’s judgment.” (Emphasis added.)
Even as someone who broadly shares their policy and cultural concerns, is hard to escape the conclusion many conservative Christians are only concerned about morality and character in politics when they see these as winning issue.
And winning means supporting a man whose character and life is contrary to the Gospel? Well, ifs it’s only a grain of incense, does it really matter?
Yes, yes it does. And so French say
You cannot unring that bell. You cannot maintain credibility with a skeptical culture and say, “Our bad. Politics is really just a transactional, antiseptic evaluation of competing policy proposals.” If you’re going to reinterpret a decisive, theological declaration, you need to show your work. And if you think that public skepticism doesn’t matter, that you can just win anyway, write laws, and change the moral character of a nation, an entire history of public resistance to morals legislation—from prohibition, to bans on contraception, adultery, sodomy, and obscenity—stands in your way.
Christians who support Trump to score a win in the culture wars might want to ask themselves how this is in their best long-term interest. As for the hope to avoid persecution, they might as well this squares with the witness of the martyrs?
Or as French concludes: “From the beginning, the American experiment has been inextricably linked to the virtue of a ‘moral and religious people.’ Embracing an immoral man to save morality is not a bargain that most of the American people understand—no matter how well it plays on talk radio or conservative Twitter. ”
Something to think about.
Introduction. The Eastern Church doesn’t really have the liturgical season of Advent. We do have a fast period as part of our preparation for the Nativity that extends from November 15/28 through December 24/January 6. We only have two, preparatory
Sundays. Our liturgical preparation begins in earnest only on December 20/January 2, with the Forefeast of the Nativity. It is only from December 20 through December 24, that the Eastern Church uses the language of expectation characteristic in the West. For example, at Vespers on December 20 we hear:
O ye people, and raising our thoughts on high let us go in spirit to Bethlehem; and with the eyes of our mind let us gaze upon the Virgin, as she hastens to give birth unto our God, the Lord of all.
To help sketch out how the Orthodox Church envisions what it means to say “Emmanuel” that “God is with us,” I want to look with you at the icons and hymnography of four feasts—the Annunciation, the Nativity, the Presentation of Our Lord in the Temple and Theophany. Taken together these are meant to fix our hearts on that “great mystery in a cave” that “opened once again … [the] gates, O Eden” and granted “the world great mercy.”
Feast of the Annunciation Liturgically as well as in our icons, the Orthodox Church’s envisioning Emmanuel beings 9 months before Christmas on the Feast of Annunciation when. It is at this moment when, as we hear at Vespers, our salvation is accomplished. And as the hymnography makes clear, it isn’t simply humanity’s salvation or even the Virgin’s salvation that is accomplished but my personal salvation as well:
Behold, our restoration hath now been revealed to us! God unites Himself to me, in a manner past all telling! Delusion is dispelled by the voice of the archangel! For the Virgin receiveth joy, an earthly woman hath become heaven! The world is released from the primal curse! Let creation rejoice and chant aloud: O Lord, our Creator and Redeemer, glory be to Thee!
In His conception, Emmanual is not simply God With Us but God With Me (and You as well). The fact that we were born and live some 20 centuries later doesn’t change the fact that in becoming Man the Son has united Himself to every person and is so doing salvation is accomplished for all even if it is still to be appropriated by each. The reason for this is because what we suffer from Adam forwards is not immorality but a separation from God.
Turning to the icon, we see that humanity’s salvation is not accomplished without our cooperation. Based on the events recorded for us Luke (1:26-38), the angel announces to the Virgin her role in salvation history; respectful of the necessity of her free ascent, he then waits patient for her fait. The hymnography for the feast shows the Virgin to be a full participant in this process. Taking on the role of a prosecuting attorney, she interrogates Gabriel to avoid, as she says, the mistake “My first mother” who in “accepting the serpent’s knowledge, was driven away from divine sustenance.”
The coming of Emmanuel then is not only a monument of divine grace but one which brings into sharp focus human freedom revealing to us both God and ourselves.
Feast of the Nativity. The eucharistic theology of the Annunciation, of communion restored and offered, is also a theology of divine illumination. Just as by His Incarnation the Son has united Himself to each human person, by His birth He illumines not only the human heart but all creation. As sing on Christmas day
Thy Nativity, O Christ our God, * hath shined the light of knowledge upon the world; * for thereby, they that worshipped the stars * were instructed by a star * to worship Thee, the Sun of Righteousness, * and to know Thee, the Dayspring from on high. ** O Lord, glory be to Thee.
Turning to the icon, we discover that salvation embraces not only the human person and human society but the material world. Again, from the hymn on Christmas day:
Today the Virgin giveth birth to Him Who is transcendent in essence; * and the earth offereth a cave to Him Who is unapproachable. * Angels with shepherds give glory; * the Magi journey with a star; ** for our sake a young Child is born, Who is the pre-eternal God.
Hear in the hymnography and see in the icon not only the Christ Child and the Virgin but also the other human, angelic, animal and material actors in salvation. All have their role to play in healing the broken communion between God and humanity.
However, not everything we see under the warmth of the divine light is pleasant. I want to draw your attention particularly to St Joseph. We know from St Luke that he was not only a “just man” but a kind man who did not want to shame Mary by making here “a public example” (Matthew 1:19). For this reason, he struggles with his role in the incarnation; Joseph must think through what recent events mean. This is important because it makes clear that the Son comes not simply to redeem the soul or even the soul and body but all the faculties of the human person.
Reflecting on the salvation of the whole person, leads St Maximus the Confessor in the 7th century to affirm that because sin has damaged our intellect, even understanding the empirical character of creation requires divine grace and illumination to say nothing of the cultivation of the intellectual and moral virtues.
Feast of the Presentation. The highly stylized representation of animals and the natural world in icons, reflect a soteriological vision that extends not only to the human person but to the whole creation—animate and inanimate. All are redeemed, all are illumined, because in His Incarnation the Son has fulfilled the primordial but failed vocation of the First Adam.
As for us, created as we are in the image the God Who is Himself free from any necessity, from any external constraint, the coming of the Son of God requires our free, personal response. What is implicit at the Annunciation is made explicit at the feast of the Presentation.
We are called to make our own, personal ascent to Jesus Christ. We are called, as we hear in the hymnography for the feast, to “receive Him Whom Symeon perceive[s] as our salvation.” Salvation, in other words, is an invitation extended to all and to which we must freely and personally respond.
The personal character of salvation means that not only has Christ fulfilled the Law but, as St Justin Martyr will say in the 2nd century, all human knowledge and virtue as well. God has prepared not only the Jews but also the Gentiles for His incarnation. And both the Jew and the Gentile are called to imitate Symeon and receive Him Who is “the fulfillment of the promise” not only of the Law and Philosophy but also of each human heart.
Feast of Theophany. What the West celebrates as the Baptism of our Lord, the East celebrates as the Feast of the Theophany. As with Nativity, historical events are only one part of a broader theological conversation embodied in the Church’s art and worship. As the Greek Orthodox theologian Christos Yannaras puts it “The ontological content of the eucharist– eucharistic communion as a mode of existence– assumes that the communal reality of life has a cosmological dimension: it presupposes matter and the use of matter, which is to say art, as the creative transformation of matter into a fact of relationship and communion.”
Yannaras’ point here reflects Orthodox soteriology. Salvation is not merely a forensic affirmation of righteousness in Christ but, in the words of the Apostle Peter, a “sharing in the divine nature” (see 1 Peter 1:4) or in Greek theosis and in English deification.
The God in Whose nature we share is of course Himself a community of Three Persons—Father, Son, and Holy Spirit. The creative transformation of matter into an event of communion is an extension of what we’ve seen so far. Having transformed human life and all of creation from within, Jesus Christ invites us to do likewise.
The pattern of this transformation is the Holy Trinity. This is why I would like to end my discussion with the icon of Theophany. It is at Theophany, at Christ’s baptism in the Jordan by John (Matthew 3:13) “that the worship of the Holy Trinity is revealed.” In the icon for the feast, we see both the Son and the Holy Spirit the Father’s “finger, crying out and point from heaven, openly declared and proclaimed to all that the one then being baptized by John in the Jordan was His beloved Son, while at the same time manifesting His unity with Him.”
In the theology and iconography of the Orthodox Church to say that God is With Us, is to profess our faith in the Holy Trinity. It is also to remind ourselves of the evangelical mission of the Church to “Go into all the world and preach the gospel to every creature” (Mark 16:15). Last of all, it an affirmation and acceptance of the depth and breadth of human freedom.
Defending Religious Liberty
One of the reasons conservative Christians voted for Donald Trump is because of the hope (since vindicated) that he would reverse Obama administration policies that required either that faith-based groups to either leave Public Square or remain but at the cost of compromising their commitment to their own moral traditions.
On Thursday, the White House announced a new rule that will help faith-based organizations remain a vital part of the child-welfare system. The Obama-era provisions redefined federal nondiscrimination policies in a way that excluded faith-based groups. The new rule brings regulations at the Department of Health and Human Services back in line with all other federal nondiscrimination law and Supreme Court precedent.
It’s worth noting, that this unwelcome choice was limited wholly to matters of human sexuality. In effect, the Obama administration said to faith-based groups, agree with us about contraception, abortion, and homosexuality or abandon your ministry.
Besides being unconstitutional, these policies were intrinsically unjust seeking as they did to undermine faith-based communities. A Catholic school, for example, that employed an openly homosexual teacher does so at the expense of their Church’s teaching on the nature of marriage. Likewise with an Evangelical Christian, Jewish or Muslim social service agency that is required to place children with same-sex couples.
When faced with an aggressively secular that seeks to use the government to undermine a community’s religious faith and practice, is ti any wonder that that conservative Christians turned out in large numbers for Trump?
If Democrats, and especially progressive Demoncrats, are serious about taking the White Hise and flipping the Senate, they will need to adopt policies that protect not only the rights of sexual minorities but also conservative Christian, Jews, and Muslims.
For Orthodox Christians, the absence of such policies–and especially the commitment to continue and expand the anti-religious liberty policies of the Obama administration–makes voting for Democratic candidates morally problematic for two reasons.
First, these policies seek to compel believers to agree with policies that they find morally unacceptable. Second, in doing so these policies actively undermine the witness of a community not only in the Public Square but also within its own precincts.
There has been much written about the hypocrisy of evangelical Christ support for President Trump. And most of it, I think, is correct.
However, what remains unexamined by these same critics is the way in which Democrats have created this situation. Without a credible alternative that protects their religious liberty, it is not surprising that conservative religious believers continue to support the Trump administration.
Politics is always a trade-off. There is rarely if ever, a policy or politician wholly in agreement with the Gospel. When the alternative placed before conservative religious voters is a seriously, almost comically, morally flawed candidate who protects their liberty and an equally, if differently morally flawed candidate who pursues policies that risk that liberty, one ought not to be surprised that they vote for the former.
Criticisms of this choice demonstrate either an appalling lack of empathy for one’s fellow citizens or an attempt to shame conservative believers to no longer pursue their own, morally legitimate, self-interest. Neither is in the service of a free and just society.
How Far Is Too Far?
Where I wonder, is the point when, just maybe, it might be advisable for the POTUS to stop trolling world leaders like a kid living in his parents’ basement?
The only way we keep liberty from degenerating into license is though the cultivation of virtue. But without self-restraint, without a sense of the dignity of one’s office, there can be no virtue.
What inspires these thoughts is a recent tweet from POTUS.
When Helping Hurts
I generally avoid partisan issues where the Church has definitively spoken. But as the pastor of a church on the Isthmus in Madison an area with a significant homeless population, I thought this editoral was a good warning for Mad City. San Francisco,
…has been conducting a three-decade experiment in what happens when society stops enforcing bourgeois norms of behavior. It has done so in the name of compassion for the homeless. The result: Street squalor and misery have increased, while government expenditures have ballooned. Yet the principles guiding city policy remain inviolate: Homelessness is a housing problem, it is involuntary, and it persists because of inadequate public spending. These propositions are readily disproved by talking to people living on the streets.
Both in American political philosophy and Orthodox moral theology, liberty isn’t moral license and the civil authority has a positive obligation to protect the public order.
Here in Madison, the city government has largely failed in its obligations. Like San Franciso, the mayor sees homelessness as a housing problem. While this is partly true, there are also often underlying mental health issues that lead to homelessness.
While the cause or causes of homelessness matter, so to do its consequences for public safety. As crime increases on the Isthmus (basically, downtown) becomes a more dangerous place to live and work. Failure to address the resulting increase in crime is a moral failure on the part of the city government.
In both San Francisco, one underlying cause of government inaction is the widespread embrace of liberty as moral license rather than as the freedom to do as we ought to do. As we see in other areas, often members of the middle and upper-middle classes, preach values they don’t actually embrace in their own lives.
Ironically, and tragically, “helping” the homeless is, again as we see in other areas, is doing more harm than good. Worse, it is actively harming the very people government officials are seeking to help.
Attack on Religious Liberty
I’ve linked below to proposed Wisconsin Senate bill 382. If it were to become law, it would eliminate “from the reporting requirement the exception for information obtained through confidential communications.”
Current law provides that a member of the clergy is not required to report information relating to suspected or threatened sexual abuse of a child that he or she receives solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and if, under the disciplines, tenets, or traditions of his or her religion, he or she has a duty or is expected to keep those communications secret. The bill eliminates from the reporting requirement the exception for information obtained through confidential communications.
However well-intentioned, this is an unjust infringement on religious liberty and represents an attack on the life of the Church. I would encourage all Wisconsin residents to contact their state legislators and the bills co-sponsors to protest this violation of both the US and Wisconsin constitutions. The bills’ co-sponsors can be found in the attached document.
Source: Wisconsin Legislature: SB382: Bill Text